Citation Nr: 1013678
Decision Date: 04/09/10 Archive Date: 04/29/10
DOCKET NO. 04-20 862 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Montgomery,
Alabama
THE ISSUE
Entitlement to service connection for onychomyocosis (claimed
as fungus of both feet).
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
The Veteran
ATTORNEY FOR THE BOARD
J. Murray, Associate Counsel
INTRODUCTION
The Veteran served in the Army National Guard between June
1959 and June 1967, including active duty service from
October 1961 to August 1962 and additional periods of active
duty for training (ACDUTRA) from June 1960 to December 1960.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a July 2003 rating decision of the
Department of Veterans Affairs (VA) Regional Office in St.
Petersburg, Florida, which in pertinent part, denied the
benefit sought on appeal. The following month, the Veteran's
claims file was transferred to the Regional Office in
Montgomery, Alabama (RO).
In August 2007, the Veteran testified at the RO before the
undersigned Veterans Law Judge during a Travel Board hearing.
A transcript of the proceeding has been associated with the
claims file.
The claim on appeal was previously before the Board in
September 2007 and in July 2009, when the matter was
remanded. In September 2007, the Board instructed the
Appeals Management Center (AMC) to seek the Veteran's
assistance to obtain any identified outstanding treatment
records. The AMC failed to attempt to obtain all the
identified records. In July 2009, the Board again remanded
the issue for compliance with the September 2007 remand
instructions. Later in July 2009, the AMC sent a July 2009
letter to the Veteran, and asked the Veteran to identify and
submit a completed VA Form 21-4142, Authorization and Consent
to Release Information. The Veteran did not respond. The
Board finds that there has been substantial compliance with
its July 2009 remand directive; no further action to ensure
compliance is required. See Stegall v. West, 11 Vet. App.
268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999).
FINDINGS OF FACT
1. Onychomycosis was not shown in service, at separation
from active duty, or until several decades after the
Veteran's discharge from Army National Guard service.
2. The preponderance of the evidence does not support a link
between the onychomycosis and the Veteran's service.
CONCLUSION OF LAW
Service connection for onychomyocosis is not warranted.
38 U.S.C.A. §§ 1110, 5103A, 5107 (West 2002); 38 C.F.R. §§
3.1, 3.6, 3.102, 3.159, 3.303, 3.307, 3.309 (2009).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
1. VA's Duties to Notify and Assist
As provided for by the Veterans Claims Assistance Act of 2000
(VCAA), the United States Department of Veterans Affairs has
a duty to notify and assist claimants in substantiating a
claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103,
5103A, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R.
§§ 3.102, 3.156(a), 3.159 and 3.326(a) (2009).
VA is required to notify the claimant of the information and
evidence not of record that is necessary to substantiate the
claim. VA will inform the Veteran of the type of information
and evidence that VA will seek to provide, and of the type of
information and evidence, the claimant is expected to
provide. 38 C.F.R. § 3.159(b). VA must provide such notice
to the claimant prior to an initial unfavorable decision on a
claim for VA benefits by the agency of original jurisdiction
(AOJ), even if the adjudication occurred prior to the
enactment of the VCAA. See Pelegrini v. Principi, 18 Vet.
App. 112, 119-120 (2004). These VCAA notice requirements
apply to all elements of a claim for service connection, so
VA must specifically provide notice that a disability rating
and an effective date will be assigned if service connection
is awarded. Dingess/Hartman v. Nicholson, 19 Vet. App. 473
(2006).
Here, prior to the July 2003 RO decision in the matter, VA
sent a letter to the Veteran in December 2002 that addressed
several of notice elements concerning his skin disability
claim. Subsequent to the July 2003 rating decision, VA sent
the Veteran additional notice letters in February 2004,
January 2006 and March 2006. The February 2004 and January
2006 letters informed the Veteran of what evidence is
required to substantiate the disability claims, and apprised
the Veteran as to his and VA's respective duties for
obtaining evidence. In the March 2006 notice letter, VA
informed the Veteran how it determines the disability rating
and the effective date for the award of benefits if service
connection is to be awarded. Dingess v. Nicholson, 19 Vet.
App. 473 (2006).
Although some of the required notice was sent after the
initial adjudication, the Board finds this error
nonprejudicial to the Veteran. See Mayfield v. Nicholson, 19
Vet. App. 103 (2005). In this regard, the combined notice
provided in the February 2004, the January 2006, and the
March 2006 letters fully complied with the requirements of 38
U.S.C. § 5103(a), 38 C.F.R. § 3.159(b), and Dingess, supra,
and after all the notice was provided the case was
readjudicated and an April 2009 supplemental statement of the
case was provided to the Veteran. See Pelegrini II, supra;
Mayfield v. Nicholson, 20 Vet. App. 537 (2006) (a
(supplemental) statement of the case that complies with all
applicable due process and notification requirements
constitutes a readjudication decision).
In light of the above, the Board finds that all notices
required by VCAA and implementing regulations were furnished
to the Veteran and that no useful purpose would be served by
delaying appellate review to send out additional VCAA notice
letters.
In addition to its duty to notify, or inform, the Veteran
with regard to his claim, VA also has a duty to assist the
Veteran in the development of the claim. This duty includes
assisting the Veteran in the procurement of service treatment
records and records of pertinent medical treatment since
service, and providing the Veteran a medical examination when
necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.
In this case, VA has made reasonable efforts to obtain any
available pertinent records as well as all relevant records
adequately identified by the Veteran. It is noted that the
Veteran has identified pertinent private treatment records
with Dr. E.J.B. in Mobile, Alabama on a May 2004 VA Form 21-
4142, Authorization and Consent to Release Information. The
VA Form 21-4142 expires after 180 days. As noted above, the
Veteran failed to respond to the AMC's July 2009 request to
identify and submit a completed VA Form 21-4142 for any
outstanding treatment records. The Board reminds the Veteran
that VA's duty to assist is not a one-way street. If a
veteran wishes help, he cannot passively wait for it in those
circumstances where he may or should have information that is
essential in obtaining the putative evidence. Wood v.
Derwinski, 1 Vet. App. 190, 193 (1991).
VA provided the Veteran with examinations in January 2003.
In that examination report, the VA examiner did not provide a
medical opinion on whether the disability was etiologically
related to service.
While VA has not sought a medical opinion regarding his claim
of service connection, the Board finds that a medical opinion
is not necessary to render a decision under the circumstances
of this case. See McLendon v. Nicholson, 20 Vet. App. 79
(2006); see also 38 U.S.C.A. § 5103A(d)(2), 38 C.F.R. §
3.159(c)(4)(i) (2009). The evidence of record does not show
that the Veteran had any foot fungus in service. On the
October 2002 claim application form, the Veteran stated that
his disability did not begin until 1997, and there is no
medical evidence of foot fungus prior to 2002. This evidence
comes several decades after the Veteran's discharge.
Moreover, there is no medical evidence of record that
indicates a link between the current disability and the
Veteran's service. The Board finds that any medical opinion
linking a currently diagnosed foot disability to service
would be speculative at best. As such, since obtaining a
medical opinion would not assist in substantiating the
Veteran's claim, VA has no further duty to assist in this
regard. 38 U.S.C.A. § 5103A(a)(2).
The Veteran has not identified, and the record does not
otherwise indicate, any additional existing evidence that is
necessary for a fair adjudication of the claim that has not
been obtained. See Bernard v. Brown, 4 Vet. App. 384 (1993).
For the foregoing reasons, the Board therefore finds that VA
has satisfied its duty to notify and its duty to assist
pursuant to the VCAA. See 38 U.S.C.A. §§ 5102 and 5103;
38 C.F.R. §§ 3.159(b), 20.1102; Pelegrini, supra; Quartuccio
v. Principi, 16 Vet. App. 183 (2002).
2. Service Connection
Service connection may be granted for a disability resulting
from disease or injury incurred in or aggravated by service.
38 U.S.C.A. §§ 1110 (West 2002); 38 C.F.R. § 3.303(a) (2009).
The chronicity provision of 38 U.S.C.A. § 3.303(b) is
applicable where the evidence, regardless of its date, shows
that the Veteran had a chronic condition in service or during
an applicable presumption period and still has such
condition. Such evidence must be medical unless it relates
to a condition as to which, under the Court's case law, lay
observation is competent. Savage v. Gober, 10 Vet. App. 488,
498 (1997). In addition, if a condition noted during service
is not shown to be chronic, then generally a showing of
continuity of symptomatology after service is required for
service connection. 38 U.S.C.A. § 3.303(b).
Service connection may also be granted for any disability
diagnosed after discharge when all of the evidence
establishes that the disability is due to disease or injury
which was incurred in or aggravated by service. 38 C.F.R. §
3.303(d). In addition, service connection for a "chronic
disease" may be granted if manifested to a compensable
degree within one year of separation from active duty. 38
U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309; see
also 67 Fed. Reg. 67792-67793 (Nov. 7, 2002).
To prevail on the issue of service connection, there must be
(1) medical evidence of a current disability; (2) medical, or
in certain circumstances, lay evidence of in-service
incurrence or aggravation of a disease or injury; and (3)
medical evidence of a nexus between the claimed in-service
disease or injury and the current disability. See Hickson v.
West, 12 Vet. App. 247, 253 (1999).
It is noted that active military service includes any period
of active duty for training (ACDUTRA) during which the
individual concerned was disabled from a disease or injury
incurred or aggravated in the line of duty, and any period of
inactive duty training (INACDUTRA) during which the
individual concerned was disabled from an injury incurred or
aggravated in the line of duty. 38 U.S.C.A. § 101(24). That
is to say, when a claim is based on a period of ACDUTRA,
there must be evidence that the individual concerned died or
became disabled during the period of ACDUTRA because of a
disease or injury incurred or aggravated in the line of duty.
In the absence of such evidence, the period of ACDUTRA would
not qualify as "active military, naval, or air service" and
the claimant would not achieve veteran status for purposes of
that claim. See 38 U.S.C.A. § 101(2)-(24); Mercado-Martinez,
11 Vet. App. at 419.
The determination as to whether the requirements for service
connection are met is based on an analysis of all the
evidence of record and the evaluation of its credibility and
probative value. 38 U.S.C.A. § 7104(a); Baldwin v. West, 13
Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). If there is at
least an approximate balance of positive and negative
evidence regarding any issue material to the claim, the
claimant shall be given the benefit of the doubt in resolving
each such issue. 38 U.S.C.A. § 5107; Ortiz v. Principi, 274
F.3d 1361, 1364 (Fed. Cir. 2001); 38 C.F.R. §§ 3.102. On the
other hand, if the Board determines that the preponderance of
the evidence is against the claim, it has necessarily found
that the evidence is not in approximate balance, and the
benefit of the doubt rule is not applicable. Ortiz, 274 F.3d
at 1365.
In this case, the Veteran seeks service connection for
onychomyocosis, originally claimed as bilateral foot fungus.
In an October 2002 statement in support of the case, the
Veteran asserted that the boots he wore in service caused his
bilateral foot fungus. The Veteran has testified that he
developed foot fungus during the service.
A review of the Veteran's service treatment records does not
show any complaints, treatment or diagnoses for any foot
fungus. The report of a June 1959 examination prior to
entrance shows the Veteran's feet were evaluated as normal,
but it was noted that the Veteran had a lateral scar on his
left foot. On an associated report of medical history, the
Veteran indicated that he experienced foot trouble prior to
his enlistment. There was no indication whether the
Veteran's foot troubles involved any fungal disease or
infection. On the subsequent service examination reports of
record, the Veteran's feet were evaluated as normal, and none
of the later associated reports of medical history shows any
indication of foot troubles. See service treatment records
dated November 1960, September 1961, October 1961, and June
1962. The record does not contain a medical examination
report prior to the Veteran's separation from the Army
National Guard.
The first medical evidence of any foot-related fungal
problems is shown in a May 2002 VA treatment record. In that
record, it was noted that the Veteran was being seen for a
routine diabetes mellitus foot examination, and it showed
that the Veteran had onychogryphosis. On an October 2002 VA
treatment record, it was noted that the Veteran had
onychauxic type disease on eight toenails. Subsequent VA
treatment records continue to show treatment for similar
bilateral foot conditions. None of the treatment records
contains a medical statement on the etiology of the
condition.
In January 2003, the Veteran was afforded a VA examination in
conjunction with his claim. In that examination report, the
examiner noted that the Veteran reported a fungal infection
on his feet for the past two years. The Veteran was
diagnosed with onychomycosis of the toenails. The examiner
did not provide any other pertinent medical statements.
Here, the record shows the Veteran has a current diagnosis of
onychomycosis. The service treatment records do not show any
complaints of or treatment for any foot fungus in service.
The remaining question on appeal is whether the preponderance
the evidence supports a finding that the current disability
is related to service. Based on a review of the evidence,
the Board finds the weight of the evidence is against such a
finding.
First, there is no medical evidence showing that the
Veteran's disabilities were present until several decades
after the Veteran's service. See 38 C.F.R. § 3.303. The
Board acknowledges the Veteran's testimony that his
onychomyocosis began in service, shortly after he was
relocated from Fort Benning in 1960. While the Board does
not doubt the sincerity of the Veteran's current belief that
his symptoms were present in service, the record contains
some inconsistencies that diminish the reliability of the
Veteran's current recollections. On the October 2002
application for benefits form, the Veteran stated that the
bilateral foot fungus began in 1997, and during the January
2003 examination, the Veteran reported that he had symptoms
for the past two years. Based on the Veteran's conflicting
statements, the Board finds that the Veteran is not credible
to the extent that he reports the onset of his current
disability. Caluza v. Brown, 7 Vet. App. 498, 510-511 (1995)
(Credibility can be generally evaluated by a showing of
interest, bias, or inconsistent statement, and the demeanor
of the witness, facial plausibility of the testimony, and the
consistency of the witness testimony.
Moreover, the contemporary medical evidence at the time of
the Veteran's service does not confirm his assertions.
Rather, the four examination reports after 1960 do not show
any indication of fungal disease or infection on the
Veteran's feet. The Board finds the subsequent examination
reports to be very probative evidence against the Veteran, as
they are very close in time to the date in question. See
Curry v. Brown, 7 Vet. App. 59, 68 (1994) (noting that
contemporaneous evidence has greater probative value than
history as reported by a veteran).
The record does not show any evidence of onychomycosis or any
other foot-related disease or infection until several decades
after the Veteran's Army National Guard service. The
significant evidentiary gap between the Veteran's active
service and the earliest medical evidence of chronic fungal
disability weighs heavily against the Veteran's claims on a
direct basis. A lengthy period without treatment is evidence
against a finding of continuity of symptomatology, and it
weighs heavily against the claim. See Maxson v. West, 12
Vet. App. 453 (1999), aff'd 230 F.3d 1330 (Fed. Cir. 2000)
(service incurrence may be rebutted by the absence of medical
treatment of the claimed condition for many years after
service).
Additionally, the record lacks medical evidence establishing
a possible relationship between the Veteran's onychomycosis
and his period of active service. The Board has considered
the Veteran's assertions that his skin problems are related
to his service. It is noted that the record shows the
Veteran's military occupational specialty as a medical
specialist. In this regard, the Veteran is competent to
attest to facts surrounding his claim, and as person with
medical knowledge, he may be competent to provide a medical
opinion. See Espiritu v. Derwinski, 2 Vet. App. 492, 494-95
(1992). The Board, however, retains the discretion to make
credibility determinations and otherwise weigh the evidence
submitted, including lay evidence. See Buchanan v.
Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). As shown
above, the Board does not find the Veteran has provided
credible statements. Therefore, to the extent, his statement
contains a medical etiology of his current disabilities; this
is simply not credible or persuasive evidence. The record is
devoid of any competent evidence indicating a link between
disability and the Veteran's service.
In sum, there is no indication of any foot-related fungal
disease or infection in service. The first evidence of any
foot-related fungus was not shown until several decades after
the Veteran's Army National Guard service, and there is no
medical opinion linking the current disability to service.
The preponderance of the medical evidence is against a
finding that onychomycosis is related to service.
Consequently, the benefit-of-the-doubt rule does not apply.
See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102; Gilbert v.
Derwinski, 1 Vet. App. 49, 54-56 (1990). The claim must be
denied.
ORDER
Entitlement to service connection for onychomycosis is
denied.
____________________________________________
DENNIS F. CHIAPPETTA
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs